2026 has been a festive year, marking the 250th anniversary of the Declaration of Independence, which was adopted in our home town of Philadelphia. But did you know that the first formal call by any colony for independence from perfidious Albion was the Halifax Resolves, which was issued on April 12, 1776 in North Carolina? There is a lot to like about North Carolina. It has remarkable beauty, from the Outer Banks to the Smoky Mountains. The Biltmore Estate and Grove Park Inn are gorgeous. North Carolina, as its license plates will tell you, was First in Flight, seeing the Wright Brothers take off from Kitty Hawk in 1903. It has a curiously philosophical state motto: esse quam videri (“to be rather than to seem”). It has a governor, Josh Stein, whom we respect way more than most politicians. We worked on a matter that involved negotiations with state attorneys general from all over the country. Stein was North Carolina’s Attorney General back then (further proof that AG stands for aspiring governor) and he was one of maybe three AG’s who seemed both smart and ethical. Otherwise, it was like stumbling into a nest of vipers. Maybe they were the top lawyers in their states, but you would be nuts to trust most of them to research a relatively simple point of law – such as the statute of limitations.
Why are we taking this moment to extol the virtues of North Carolina? Is it because it gave birth to Michael Jordan and Thomas Wolfe? Or because it is the improbable home of the current Stanley Cup champions? Or is it because North Carolina gave us the greatest donuts, both from NASCAR post victory celebrations and Krispy Kreme?
No, friends, we actually have a legal basis to laud North Carolina.
A collective of crows is called a murder, and a collective of owls is called a parliament. What is a collective of defense lawyers? A disputation? A quarrel? Maybe it should be a whinge, because we are prone to complaining about rotten rulings and hellhole jurisdictions. But being of a preternaturally sunny disposition, we like to flip the script toward the positive. If Los Angeles, Philly, Cook County, and a certain docket in South Carolina are hotbeds of anti-corporate animus where summary judgment motions are seldom granted (and maybe not even read), which jurisdictions offer more favorable playing fields?
We hereby nominate North Carolina. We have not had too many cases there, but every time we have, we have encountered fair minded judges and sound law. Maybe we were just lucky. Or maybe North Carolina really has a good legal environment.
Page v. Elekta, Inc., 2026 WL 2217010 (E.D. N.C. July 31, 2026), is an example of rational tarheel law. To begin with, there is no strict liability in North Carolina, praise be. In Page, we learn that North Carolina has a favorable statute of limitations for personal injury (except for medical malpractice). Instead of the usual mushy “accrual” language we see elsewhere, the statute begins to run when “bodily harm to the claimant … becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” That language cuts out much of the “but I didn’t know ____” back and forth that typifies discovery rule litigation in other states. Indeed, too often we hear plaintiff lawyers argue that the discovery rule means that the statute of limitations does not get triggered until a plaintiff has learned that there is an airtight case against the particular defendant. Take this sophistry to its illogical conclusion and then the statute of limitations period does not start until the court denies summary judgment, or maybe not until the jury returns a verdict for the plaintiff, or maybe maybe not until the appellate court upholds said verdict. It can get pretty crazy. But not in North Carolina.
In Page, the plaintiff alleged exposure to excessive radiation during treatment for her breast cancer. The radiation injuries — burns and other tissue damage — were readily apparent when they occurred. The plaintiff sued her doctor but, at least initially, did not investigate the device itself. More than three years after the injuries were apparent, she sued the device manufacturer, claiming to have learned of a software defect from discovery in the medical malpractice case.
The statute of limitations in North Carolina for personal injury cases is three years. Thus, the product liability claim did not survive a motion to dismiss. A plaintiff’s attribution of injuries to the particular defendant “is not material in assessing whether the discovery rule tolls the statute of limitations.” All that matters is that the injury itself was apparent. As the Page court explained, “it is the appearance of the ‘bodily harm’ — rather than plaintiff’s attribution of that harm’s cause — that starts the clock.” The plaintiff cited another case that interpreted the discovery rule more generously for plaintiffs, pausing the clock until the plaintiff discovers that she was injured as a result of the defendant’s wrongdoing, but that case involved a different statute – one governing medical malpractice claims. (Typically, the law regarding medical malpractice claims is more defense-friendly than product liability law. People, including legislators, like doctors. That is why most jurisdictions require plaintiffs to submit a certificate of merit to commence a med-mal case. We wish a similar certificate was required before launching a mass tort against medical products. Oh well. Anyway, North Carolina’s disparate starting guns for accrual of product and med-mal claims is unusual.) Because the plaintiff filed her claim more than three years after her radiation burns and other injuries were obvious to her, her negligence and breach of warranty claims were barred.
Just in case another court goes, er, south on the statute of limitations issue, the Page court went on to explain why the plaintiff’s claim for breach of the implied warranty of merchantability failed. North Carolina warranty law requires privity, and no privity was pleaded in Page. Further, the plaintiff could not avail herself of the “buyer” exception, because she was not a buyer of the medical device at issue. A doctor is generally not a merchant or seller of goods under the Uniform Commercial Code. (The Page court relied on a pelvic mesh case for that holding. So even in the wretched pelvic mesh mass tort, in which dumb decisions dotted the landscape like kudzu, North Carolina stands out for judicial wisdom.)
This decision turns the page on another glory of North Carolina law and will be published in F. Supp. Page offers yet another reason why plaintiff lawyers would prefer to litigate in Philly or South Carolina, and not so much in North Carolina, where the law does not just seem better, it is better.